HB 0839

1	A bill to be entitled
2	An act relating to wrongful death of a viable fetus;
3	amending s. 768.18, F.S.; revising and providing
4	definitions; amending s. 768.19, F.S.; applying the
5	Florida Wrongful Death Act to viable fetuses in the third
6	trimester of pregnancy; providing an exception for an
7	abortion permitted by law; providing an exception for
8	obstetrical services meeting certain conditions; providing
9	an exception for acts by physicians and medical
10	institutions where there is no medical reason to be aware
11	of the mother's pregnancy; providing an effective date.
12
13	Be It Enacted by the Legislature of the State of Florida:
14
15	Section 1.  Subsection (2) of section 768.18, Florida
16	Statutes, is amended, and subsection (6) is added to said
17	section, to read:
18	768.18  Definitions.--As used in ss. 768.16-768.26:
19	(2)  "Minor children" means children under 25 years of age,
20	notwithstanding the age of majority, and includes viable
21	fetuses.
22	(6)  "Viable fetus" means a fetus of a mother in the third
23	trimester of pregnancy, as defined in s. 390.011, that has
24	become capable of independent life.
25	Section 2.  Section 768.19, Florida Statutes, is amended to
26	read:
27	768.19  Right of action.--
28	(1)  When the death of a person is caused by the wrongful
29	act, negligence, default, or breach of contract or warranty of
30	any person, including those occurring on navigable waters, and
31	the event would have entitled the person injured to maintain an
32	action and recover damages if death had not ensued, the person
33	or watercraft that would have been liable in damages if death
34	had not ensued shall be liable for damages as specified in this
35	act notwithstanding the death of the person injured, although
36	death was caused under circumstances constituting a felony.
37	(2)(a)  When the death of a viable fetus is caused by the
38	wrongful act, negligence, default, or breach of contract or
39	warranty of any person, including those occurring on navigable
40	waters, and the event would have entitled the viable fetus to
41	maintain an action and recover damages if:
42	1.  The viable fetus had been born alive, as defined in s.
43	382.002, prior to the act, negligence, default, or breach of
44	contract or warranty on which the claim is based; and
45	2.  Death had not ensued,
46
47	the person or watercraft that would have been liable in damages
48	if death had not ensued shall be liable for damages as specified
49	in this act notwithstanding the death of the viable fetus,
50	although death was caused under circumstances constituting a
51	felony.
52	(b)  There shall be no cause of action under this act
53	against a physician or a medical institution for the wrongful
54	death of a viable fetus caused by an abortion where the abortion
55	was permitted by law and the requisite consent was lawfully
56	given, provided, however, that a cause of action is not
57	prohibited where the fetus is born alive but subsequently dies.
58	(c)  There shall be no cause of action under this act
59	against a physician or a medical institution for the wrongful
60	death of a viable fetus caused by the performance of obstetrical
61	services where the services were permitted by law, the requisite
62	consent was lawfully given, and the services were performed with
63	the care required under the applicable standard of care.
64	(d)  There shall be no cause of action under this act
65	against a physician or a medical institution for the wrongful
66	death of a viable fetus based on the alleged misconduct of the
67	physician or medical institution where the physician or
68	institution did not know and, under the applicable standard of
69	care, had no medical reason to know of the pregnancy of the
70	mother of the fetus.
71	Section 3.  This act shall take effect July 1, 2005.

CODING: Words stricken are deletions; words underlined are additions.